Plaintiffs Want Retrial of Whirlpool Moldy Washers Class Action

The plaintiffs who filed a class action lawsuit against Whirlpool Corp. are appealing the decision by an Ohio federal jury, which ruled in favor of the appliance maker in the lawsuit, alleging that Whirlpool makes washing machines that have a defect, allowing mold to develop.

The plaintiffs claim in their appeal to the Sixth Circuit Court of Appeals that the only reason Whirlpool won the class action lawsuit in October 2014 was because the federal judge had altered the burden of proof the night before the trial began.

According to the plaintiffs, Whirlpool won the favor of the jury, not because the front-loading washing machines, called Duets, “are not defective, Whirlpool’s own engineers concluded that they are defective due to common design features that permit mold to accumulate in parts of the washers consumers cannot see or clean.

“And not because Whirlpool put on a compelling — or, really, any — defense of that design at trial,” the plaintiffs explain. “It did not, instead attacking the consumers who purchased the washers, their experts, and their counsel in ways that plainly violated court orders.”

The plaintiffs in the Whirlpool class action lawsuit say that the reason Whirlpool won was due to “a series of legal errors by the District Court,” when in fact there is “overwhelming evidence that the Duets are defectively designed and unmerchantable.”

The night before the trial was set to begin, the Ohio federal judge “issued a single sentence ruling,” in which the plaintiffs were told that they would have “to prove that each of the twenty Duet models included in the Class is defective,” the plaintiffs explain, which they say was done “without explanation.”

This ruling, the plaintiffs explain, increased the burden of proof needed by the class members in the Whirlpool defective washing machine class action lawsuit.

According to the plaintiffs, they had established proof of the defect, which allegedly learned was based on two “design flaws — the honeycombed tubs and crosspieces with cavities that gather moisture and debris that lead to mold growth — unquestionably shared across all 20 models.”

However, they say that they did not show this defect in all 20 models “because they are all equipped with the same tubs and crosspieces that comprise the defect,” although there are some variations in the design.

The appellate court and the federal court have previously said that those variations “were immaterial for purposes of a classwide trial,” the plaintiffs say in the Whirlpool class action lawsuit appeal.

“The District Court’s sudden shift on this issue left [the plaintiffs] without proof critical to proving their claims,”  they explain.

“In simplest terms, their testifying engineering expert inspected only seven of the 20 models in the Class and because all 20 shared the identical alleged design flaws, opined that all 20 are defective,” the plaintiffs said.

However, “Whirlpool immediately took advantage of the District Court’s ruling, making [the plaintiffs’] expanded burden of proof a central focus of its trial presentation,”  which ultimately led to the jury ruling in favor of the appliance maker in the Whirlpool defective washing machine class action lawsuit.

Two other errors cited by plaintiffs allegedly occurred when the “District Court excluded all of the substantial evidence that the mold that grows in Duets poses a risk to human health,” and “when the District Court permitted a trial about the design of washers to turn into a referendum on plaintiffs and plaintiffs’ lawyers and devolve into allegations of ginned-up litigation.”

The plaintiffs in the Whirlpool class action lawsuit are asking that the jury’s decision be overturned and that they be allowed to have a retrial.

U.S. District Judge Christopher Boyko turned down Whirlpool’s attempt to have the class action lawsuit dismissed in September.

The plaintiffs are represented by lead counsel Jonathan D. Selbin, Jason L. Lichtman, Sudarsana Srinivasan, Mark P. Chalos, Jordan Elias and Jerome P. Mayer-Cantú of Lieff Cabraser Heimann & Bernstein LLP.

Whirlpool is represented by Allison R. McLaughlin and Michael Timothy Williams of Wheeler Trigg O’Donnell LLP, and Stephen M. Shapiro of Mayer Brown LLP.

The Whirlpool Defective Washing Machine Class Action Lawsuit is Gina Glazer et al. v. Whirlpool Corp., Case No.  14-4184, in the U.S. Court of Appeals for the Sixth Circuit.